Constitutional Relevancy?

This past Sunday, September 17, was the 230th anniversary of the conclusion of the Philadelphia convention of 1787.  Upon the conclusion of the convention, as he was leaving “Independence Hall”, the aged Benjamin Franklin was asked, “Well Doctor Franklin, what have you got for us?”, to which he replied, “A republic madam, if you can keep it.”  Actually, what he and the other delegates to the convention had given to their fellow Americans and us, their descendants, was a constitutional republic.

Yet, this week, we must ask, “After 230 years, are we still a constitutional republic?  Is the Constitution still relevant in our day and time?”  To these two questions I would answer with a resounding “No”!  Consider the following (with apologies to Jeff Foxworthy):

If the party in power can use secret courts to get an order to wiretap and spy on their opponents with no repercussions, you might not live in a constitutional republic.

If government agencies can plant applications on the computers of reporters who are reporting on governmental malfeasance and tap their phone conversations (e.g., James Rosen and Sharyl Attkinsson), thus violating both the first and fourth amendments, you might not live in a constitutional republic.

If the government records the conversations and all electronic communications of every citizen in massive meta-data fusion centers, again violating the fourth amendment, you might not live in a constitutional republic.

If elected officials constantly create unconstitutional agencies and empower them to act as legislator, executor and judge over your property, business and personal affairs, you might not live in a constitutional republic.

If elected officials listen more to those who fill their campaign coffers instead of their constituents, you might not live in a constitutional republic.

If certain officials in high positions of power use their position to influence policies and negotiations with foreign powers to grossly enhance their financial well-being at the expense of the liberties and security of the rest of the country (e.g., Hilary Clinton), with no fear of prosecution, you might not live in a constitutional republic.

If elected officials and even members of the Supreme Court have no inkling as to the tenets of the Constitution, even mocking it (e.g., Nancy Pelosi’s response regarding the unconstitutionality of “Obamacare”), you might not live in a constitutional Republic.

If the government routinely eschews the limitations imposed upon its authority by Article I, Section 8 of the Constitution, you might not live in a constitutional republic.

I could go on and on with these, but I think it’s a sufficient number that you get the picture.  Our elected (and unelected) government officials pay lip service to the Constitution they take an oath to uphold and defend, but they seldom live up to that oath.  So, is our Constitution relevant today as to the operation of our national government?  I think, sadly, the answer is rather obvious.

-September 22, 2017

 

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The First Amendment and Social Media

Lately there has been much criticism levied at social media sites such as Facebook, Twitter, etc., and companies who have censored certain postings or statements made by individuals (or employees in the case of employers).  I have heard many conservatives claim that these sites and employers are violating the first amendment’s guarantee of freedom of speech and think that the government should step in and do something about it because those being censored are political conservatives.  Such criticisms and allegations regarding violations of the first amendment are completely off base.

Do I like that conservatives are censored in this manner?  Absolutely not.  Do I think such censorship is a violation of the first amendment?  Again, absolutely not.  The first amendment states “Congress shall make no law…abridging the freedom of speech, or of the press.”   This guarantee is unambiguous – it is a prohibition against Congress from censoring speech and the press, not private companies such as social media sites and employers.

Conservatives who make this charge need to pause and reflect upon what they are asserting.  They are in effect appealing to the government to force a private company and/or employer to allow individuals who use the companies’ services or who are employed by them to permit their preferred form of expression.  Constitutionalists should understand that the government has no authority under the Constitution to do any such thing.

It is hypocritical for conservatives to make this complaint and appeal to the government while at the same time arguing that the government has no authority to tell bakeries they must provide a cake for a gay wedding or that the government has the authority to tell a company or individual what they can or cannot do with their private property, and so forth.  You cannot argue on the one hand for the government to interfere with a private entity’s business operations when it goes against your preferences while at the same time telling it that it has no authority when it interferes in matters that go against your principles.  That old adage of “What’s sauce for the goose is sauce for the gander” comes to mind, does it not?

Again, please do not think I applaud the censorship of these firms; I do not.  I find them to be hypocritical as well and cowardly as they cannot handle honest dialogue and debate.  However, as one who believes in trying to consistently adhere to our constitutional principles of limited government and individual right to self-determination, appealing to the government in this case is a slippery slope we as conservatives and constitutionalists do not want to go down.  The solution is to turn to other venues of service, if possible, and if not, to not use them.  Difficult to do and most likely not a successful alternative, but if you cherish the thought of limited government as well as non-governmental interference in your private affairs, this is the position you must regrettably take.

-September 15, 2017

 

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Infrastructure and the Constitution

We hear much these days about the need for Congress to pass an “Infrastructure bill” in which the national government will spend billions upon billions of dollars to repair roads and bridges of all types in cities and states across the country.  There’s only one teensy weenie problem with this – it is completely unconstitutional.

Are our roads, bridges, airports, et al, in dire need of repair?  Absolutely.  So what’s the issue with this “good intention” and the Constitution?  Simple.  The only reference to roads in the Constitution is found in Article I, Section 8, which states that “Congress shall have Power to…establish Post Offices and Post Roads.”  We no longer have roads designated as “post roads”; interstate highways, bridges, train trestles, airports and the like do not qualify for federal funds under the Constitution because they are clearly not defined to be “post roads.”

Yet, those wanting to pass this bill, including President Trump, will claim that this is for the “good” of the country – that such spending would fall under the guise of providing for the general welfare.  To this I say, “Baloney.”  Airports, bridges, highways, interstates are not part of the “general welfare” clause of Article I Section 8 of the Constitution, and I have no less than James Madison, the “father of the Constitution”, as my authority on that.  In The Federalist #41, he wrote:

“Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.”

 In other words, the general phrase “general welfare” in the opening clause of Article I, Section 8 is defined and limited to the enumerated items that follow in the remainder of the article, and the only roads authorized to be established (and therefore paid for) by the federal government are “post roads.”

Furthermore, in 1822 Congress passed a bill to repair the Cumberland Road that had been built using federal money under President Jefferson’s administration.  Initially the road was used as a “postal” road, but later came to be more like our modern-day interstate highways, with the states putting up toll booths, etc. on it.  So, when this bill reached the desk of President Monroe, he vetoed it as being an unconstitutional appropriation of taxpayer money.  In his veto message to the House of Representatives he stated:

“Having duly considered the bill entitled “An act for the preservation and repair of the Cumberland road,” it is with deep regret, approving as I do the policy, that I am compelled to object to its passage and to return the bill to the House of Representatives, in which it originated, under a conviction that Congress do not possess the power under the Constitution to pass such a law.

 A power to establish turnpikes with gates and tolls, and to enforce the collection of tolls by penalties, implies a power to adopt and execute a complete system of internal improvement. A right to impose duties to be paid by all persons passing a certain road, and on horses and carriages, as is done by this bill, involves the right to take the land from the proprietor on a valuation and to pass laws for the protection of the road from injuries, and if it exist as to one road it exists as to any other, and to as many roads as Congress may think proper to establish. A right to legislate for one of these purposes is a right to legislate for the others….”

 Clearly, then, any kind of an infrastructure bill is unconstitutional.  What then can we do?  Have the states pay for the building and repair of these roads, structures and entities, or follow the advice of Present Monroe who gave this answer at the end of his veto:

“Having at the commencement of my service in this high trust considered it a duty to express the opinion that the United States do not possess the power in question, and to suggest for the consideration of Congress the propriety of recommending to the States an amendment to the Constitution to vest the power in the United States,…”

This, I understand, is a harsh stance, and federal money has been spent in this manner for decades and decades and is a “good” thing; but, as stated by an unknown Federalist author in the Alexandria Gazette on July 5, 1819:

“”[The] peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.”

-September 1, 2017

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US Representative’s Job Description

Being a manager in Human Resources over the years, I’ve had many occasions to create job descriptions. I was prompted to think about this the other day when I heard Representative Maxine Waters proclaim that her only reason in running for re-election in 2018 was to continue to pursue the impeachment of President Trump.  So, with my professional background, allow me, Representative Waters, to tell you what you and your colleagues’ job description is per the Constitution.

Most would probably say that the job of our representatives in Congress is to pass laws.  After all, the Constitution plainly states that they comprise half of the national legislature, and legislating involves writing laws.   True, that is the meaning of the term “legislate”, and that is the part of the government to which the Constitution assigns them; but I’d rather they spend time unwriting laws, abolishing regulations and de-authorizing the myriad of departments and agencies they’ve created over the years that have no foundation within the Constitution!  The preacher in the Biblical book of Ecclesiastes concluded by stating a truth “amened” by every student, namely that “Of making many books there is no end, and much study wearies the body.”  If he were to write that today in view of our Congress he could well have said “Of making laws there is no end, and much regulation wearies the citizenry.”

Though some laws are necessary to the preservation of a civil society and the liberties of its citizens, I would submit that such is not the primary duty in a congressional representative’s job description.  Instead I would point to the last phrase in the first amendment to the Constitution:  “…to petition the Government for a redress of grievances.”

Why would the founders have felt the need to add this to the Constitution?  We need look no further than to our Declaration of Independence, for that is exactly the purpose for which it was written and submitted to the British Crown, but to no avail.  The founders had languished under the tyranny of a ruler who brushed aside their petitions for redress, so they wanted to make certain that in the new government they were crafting there would be a mechanism to preserve that ability and right of the people.  So just what is that conduit that is available to us whenever we feel the government has overstepped its authority and is threatening our liberties to seek redress if it is not through our representatives?  Is that not the very meaning of the term “represent”?  Just who are they representing?  Us, their constituents.  To whom are they representing us?  Is it not the national government?

No, no Maxine, your purpose in running for the office of Representative is not to “Impeach 45” (unless he has committed offenses that threaten our liberties, which he has not), but to be the mouthpiece for your fellow citizens when they feel they have been harmed by the government.  Lord knows you have a mouth – you just need to use it for the purpose for which your office intends.

-August 11, 2017

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What Can Be Done with Felonious Members of Congress?

In 1989 when the Exxon oil tanker Valdez ran onto the Prince William Sound’s Bligh Reef in Alaska and polluted the waters along 1,000 miles of Alaskan shoreline because its captain was drunk, protestors took to singing a parody of this old children’s song:   “What do you do with a drunken sailor, early in the morning?  Make him captain of an Exxon tanker.”

The question could be raised similarly about what do you do with a felonious, and perhaps traitorous member of Congress?  Well, for the Democrats, you place them in positions of leadership (at least until the member’s actions become known widespread).  By now I’m certain most, if not all, of those reading this have heard the reports of how Democratic Representative and former head of the Democratic National Committee, Debbie Wasserman Schultz, hired Muslim individuals to be her IT technicians. These technicians had access to hers and a number of other Democratic Representatives’ computers and who knows how much sensitive data in our government files.  These same individuals defrauded us taxpayers and one was even caught trying to flee the country.  We now learn that Congresswoman Schultz continued payments to him and some of the others after they had been blocked from having access to the House computer network and could not perform the work for which they supposed had been engaged.

So what can be done with members of Congress who act so egregiously?  There’s the standard answer – vote them out of office.  Yet as someone who twice attempted in the primaries to oust a long, long-term Congressman , that is seldom done as they have too much money, influence and too many connections.  However, there is another way, but it takes more political courage than those sitting in Congress seldom exhibit.

Article I, Section 5, Clause 2 of the Constitution contains this remedy:

“Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a member.”

I would say that Congresswoman Schultz’s actions certainly meet that rather low bar of “disorderly Behaviour” wouldn’t you?  There should be an immediate appointment of a special prosecutor to investigate her actions, and when all is brought forth, the other members of Congress should expel her.  But we all know that will never happen because far too many of those in Congress could also fall into similar condemnation.  After all, there is that long-standing principle of “Honor among thieves” in play with members of our Congress.  Would that we’d just have a smattering of pure, plain old “honor”.

-August 4, 2017

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Income Taxes and Bridal Dresses

It has just now come to light that a few months ago, in Garland, Texas, 20 armed IRS agents swooped down upon a mom-and-pop bridal store owned by two elderly immigrants from Thailand and seized their entire inventory and equipment for alleged unpaid back income taxes.  The designer dresses, valued at around $615,000 were sold for pennies on the dollar along with other assets such as sewing machines, a flat screen television, game console as well as the hat of Vietnam Veteran customer who had left it there to have some patches sewn on.  The total net take for the IRS:  around $17,000!  As a result, this elderly couple is left destitute and out of business after 34 years of operation.

The authority upon which the IRS relied in this robbery is 26 CFR (Code of Federal Regulations) 301.6335-1, “Sale of Seized Property.”  Note that this is not a law passed by the national legislature (Congress), but rather is part of the 80,000+ pages of “laws” promulgated by an unelected bureaucracy (IRS) which has both written “laws” (i.e., regulations) – a legislative act, interpreted how to apply these “laws” – a judicial act, and enforced these “laws” – an executive act.  Clearly no separation of powers as designed by our founders in the Constitution.

Citizens of the United States are guaranteed the right to protection against such acts by our government:   “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized” (4th Amendment, US Constitution).

According to news reports, the IRS did obtain court authorization upon their presentation of an affidavit, but the broader question is “Was this ‘reasonable’?”  If you read the complete set of guidelines of the CFR I referenced above, it appears the IRS violated its own protocols.  Not only this, but in seizing some of the non-clothing items they seized items outside the court’s authorization, especially the hat that belonged to someone not involved in the tax dispute.  If you or I do that, it’s called “theft of personal property” and we go to jail!

What is more outrageous is the speed with which this was carried out.  According to the CFR there is supposed to be at least a ten-day period between serving notice of the pending sale and the commencement of the sale; but if the IRS believes that the items to be seized are “in jeopardy” of losing their value, the items can be sold immediately without any further due process.  Designer bridal dresses “in jeopardy” of losing their value??  Seriously – weddings are going to cease and the dresses be of no worth unless disposed of immediately?

Clearly this action by the IRS costs us taxpayers much more than what they recovered by the sale of these assets.  Furthermore, the tax returns for the years in question indicate that the couple had a carryover of a net operating loss, and thus no taxes would have been owed.  Also, a memo written by an IRS supervisor obtained via the Freedom of Information Act issued a directive to agents to “shut down this failing business.”  If freedom is to be preserved, this insidious income tax and the agency it gave birth to must go.

We are no longer free my fellow Americans.  Unelected bureaucrats in these unconstitutional agencies (admittedly the IRS was created to enforce the 13th amendment) tell us what we can do with our property (EPA), what products we can produce (Dept. of Commerce), how much people must be paid by employers (DOL), how we are to obtain health care and related insurances (HHS), and how much disposable money from our earnings we’re allowed to keep (IRS).  The government, via these bureaucracies, control our property, our businesses, our health and our incomes, and our representatives in Congress do nothing to stop them.  You tell me – if the government controls these critical aspects of our lives (and there’s more), then how is it we can consider ourselves to be “free”?

-July 14, 2017

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To Declare or Not to Declare, that Is the Question – Part VIII

In last week’s essay (To Declare or Not to Declare, that Is the Question – Part VII) I alluded to the fact that the United States has forgotten how to wage war.  We have forgotten what the nature of war is and the purpose of it.

The purpose of war is not to facilitate “nation-building”, nor is it to “spread democracy.”  Unless a nation is a bent on conquest and subjugation, free nations engage in war only as a defensive matter of self-preservation.  When it comes to self-preservation war is a matter of kill or be killed, and all options should be on the table as they were in WWII.  Today we try to wage “polite war”, but no such thing exists.  We are too concerned about political correctness in how we conduct military actions.  War is horrible and should be resorted to only as a last measure due to the suffering it causes on both sides of the conflict.

My take on the approach to waging war is what I term the “Mr. Miyagi Philosophy of War.”  In the movie “Karate Kid III”, the wise Mr. Miyagi has taken a young teenage girl named Julie under his tutelage.  One evening while walking home alone she is accosted by a group of boys in a judo club and harassed.  Off to the side you hear this soft, quiet voice say to them, “Leave girl alone.”  They look, and begin laughing at and taunting this little old man telling them to back off.  If you’ve seen the movie, you know that that little old man defeats all of the boys who run off with their “tails between their legs.”  Julie gets all excited about how Mr. Miyagi “kicked butt”, and here is the wisdom in their conversation:

Juile: That was great, Mr. Miyagi.

Mr. Miyagi: Not great. Miyagi always look for way not to fight. Miyagi hate fighting, was most unfortunate.

Julie:  Unfortunate? Come on! Aren’t you glad you kicked some guy’s butt?

Mr. Miyagi: Not want to kick anything. Was most unfortunate their butts attached to small brain.

Julie: Mr. Miyagi, come on admit it. We kicked some butt.

Mr. Miyagi: Julie-san, fighting not good. But if must fight… win.

As related to our subject matter, to paraphrase that last line, “War is not good.  But if must fight…win!”

Consider what we did in WWII.  On February 13, 1945, the allies fire-bombed the city of Dresden, Germany, killing an estimated 135,000 civilians (or more) in one night.  On March 9, 1945, the US fire-bombed Toyoko, Japan and killed at least 130,000 civilians.  Then of course there were the two nuclear attacks on Hiroshima and Nagasaki.  The purpose was to try and force those nations to sue for peace and bring an end to the conflict and to preserve American and allied lives.

Today, in our war against those seeking to do us harm, in a formal declaration of war Congress should make it plain that as horrible as it may seem, we will unleash all of our might against those enemies and anyone who aligns themselves with them, shelters them, or remains in their vicinity may very well suffer the same fate as them.

General William Tecumseh Sherman understood how horrible war was, but it didn’t stop him from being ruthless in prosecuting it.  I leave you with some of his words of wisdom about war and how to wage it:

“War is the remedy that our enemies have chosen, and I say let us give them all they want.”

“I would make this war as severe as possible, and show no symptoms of tiring till the South begs for mercy.”

“My aim, then, was to whip the rebels, to humble their pride, to follow them to their inmost recesses, and make them fear and dread us.”

“War is cruelty. There is no use trying to reform it. The crueler it is, the sooner it will be over.”

“War is at its best barbarism.”

“If the people raise a great howl against my barbarity and cruelty, I will answer that war is war, and not popularity seeking.”

 “There’s many a boy here today who looks on war as all glory but it is all hell.”

 And finally,

“Every attempt to make war easy and safe will result in humiliation and disaster.”

 Would that more of our leaders had the attitude of General Sherman; then maybe there would be fewer American servicemen and women losing their lives and we as a people could dwell in peace and safety.  As Mr. Miyagi said, “if must fight…win!”

-June 23, 2017

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To Declare or Not to Declare, that Is the Question – Part VII

We now understand that the power to declare war (see To Declare or Not to Declare, that is the Question – Part VI) can mean either to formally recognize that we are in a state of war after an adversary has attacked the US, or to formally announce that we intend to commence hostilities against an adversary.  But against whom do we declare war?  Just who is an “adversary” against whom war can be declared?

The meaning of what it is to be “at war” has been muddied up over the past few decades.  We hear such phrases as “War on Poverty”, “War on Drugs”, the “Cold War”, and most recently, the “War on Terror.”  I think that the reason we have not been as successful in recent military conflicts in which we’ve engaged is because we have lost sight of what war is all about and what it truly is.

The object of a declaration of war, if it is to be understood and carried through to victory, must be specific.  In WWII, we declared war against Nazi Germany, Fascist Italy and the Empire of Japan.  It was easy for the citizens at that time to focus on and crystalize exactly who we were at war with and what it was going to take to win and return to a state of peace.  Yet the examples I gave above are nebulous to say the least.  Is it any wonder that we don’t seem to be making much headway?  We still have poverty after trillions of government spending/waste.  The drug epidemic is spreading like a prairie fire, we’re still at odds with Russia despite the dissolution of the old Soviet Union, and the so-called “War on Terror”?   Well……

I find all of these “wars” to be misnomers; an inaccurate use of the term and concept of “war.”  Consider the “War on Terror.”  Just who is the enemy?  Some might say it’s ISIS, Al Qaida, the Muslim Brotherhood, etc, but that is not the enemy we’ve tied to the use of the word “war.”  Terror is a means to an end, and therefore cannot be an enemy against which you declare war.  Winston Churchill did not declare war against Blitzkrieg when Poland was invaded.  No, he asked the British Parliament to declare war against Nazi Germany, the adversary who was utilizing the method of Blitzkrieg to attack a neighboring country.  So it must be with us today in how we approach this Muslim menace today.

President Trump should go to the Congress and ask for a declaration of war against the organizations who are perpetrating terror around the globe.   The declaration should state that we have been attacked by these adversaries over the years (the Marine Barracks in Lebanon, the USS Cole, the WTC buildings to name a few) and that we will take whatever means necessary to eradicate them.  By making this formal declaration it should also put other nations on notice that should they harbor, aide or abet these organizations they will also be considered to be adversarial to our safety and will be subject to incurring whatever damage and suffering might result when we attack these groups that are within their territory.  In effect, we are declaring to be at war with them in an indirect manner.  This way they are on notice and if they fail to take action themselves to root out those organizations, then the consequences will be on them, not on the US.

To fail to realize exactly who we are at war with and formally stating such will keep us in the condition we have been for the past almost three decades, namely mired down in politically correct battles with no clear victory or peace in sight.  Next week, a look at what war really is and how it should be waged.

-June 16, 2017

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To Declare or Not to Declare, that Is the Question – Part VI

Having examined (in the previous five installments of this series of essays) the background and the constitutional positing of the power to declare war in the hands of the legislature, we can now look at answering the question “What did the founders mean by the phrase ‘declare war’?”

There are two basic schools of thought on its meaning. One is to declare war is simply a formal announcement to the world that the US is in a state of war with xyz country(ies) – that is the war is already in existence. This would be the case with FDR’s call for Congress to declare war on the Empire of Japan after its attack on Pearl Harbor. The other interpretation is that Congress has the power to initiate war – to put a country(ies) on notice that the US considers itself to be on a war footing with them and will commence hostilities against them. The follow up question is then, which is it? Interpretation one, or two, or perhaps both?

In trying to define something it is many times helpful to look and see if the same concept has been expressed in other places using different words or phrases. If we take this approach it will help us to understand the founders’ frame of mind and in grasping what they intended when they wrote in the Constitution that “Congress shall have the power to…declare war.”

In the Articles of Confederation, written by many of the same men who later wrote the Constitution, three different phrases were used. In Article VI, the Congress was given the power to “engage in any war,” and to make “a declaration of war.” In Article IX it stated that congress “shall have the sole and exclusive right and power of determining on peace and war.”

In the original draft of the Constitution, in listing the enumerated powers of the legislature in Article VII, it had the simple phrase “to make war.” Going back to Madison’s essay of August 24, 1793, writing under the pseudonym “Helvidius” (see part III of this series, To Declare or Not to Declare – Part III), Madison used the terms “make war” and “declare war” interchangeably.

Putting this all together I think we can draw these conclusions: to “engage” in war doesn’t really tell us whether the engagement is preemptive or reactive. The same can be said of the idea of “determining” war. Both of those terms are rather ambiguous in clarifying the idea of “declaring” war. This leaves us with the term “make” war as an alternative to “declaring” war.

In that same part of Madison’s essay I referred to above, he related the act of making or declaring war to be the same as congress making law. So we ask, “What is implied by the phrase ‘making law’?” This simplifies the matter significantly as it is easily understood that to make something is to create that which before did not exist. There is no law until Congress legislates, creates or makes the law. Hence, the US cannot be in a state of war until Congress “makes” it so.

Thus, I believe that we can safely conclude that declaring war can be a determination that a state of war exists (such as after Pearl Harbor) and that Congress formally declares to the other nations such to be the case and authorizes the President to use our military forces to “engage” in armed conflict. Or it can also mean that Congress can declare war by making war, i.e., initiate hostilities with another nation where previously no open hostilities existed.

Hence, to “declare war” can be reactionary, i.e. a defensive statement after being attacked, or it can be an authorization to commence an act of war against another nation. Either way, however, as I’ve shown in this series of essays, that power rests solely with Congress and cannot, constitutionally, be consigned to the determination of one man/woman occupying the office of the President.

Next week, in what I expect will be the final installment in this series, we will examine who it is that Congress can declare war against and what should be done regarding this “war on terror.”

-June 9, 2017

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To Declare or Not to Declare, that Is the Question – Part V

Going to war is a serious business – deadly serious, which is why our founders in their great wisdom posited the authority to commence war in the hands of those who represented the citizens who would have to finance, fight and die in it.  As I mentioned in closing last week (http://frankkuchar.com/348-2/), going to war not only requires the legislature to declare it, but also the concurrence of the President as well.  This not only creates a separation of powers, but a second backstop against a headlong rush into an unwise war.

We have had many wars in our history of, which only five were congressionally-declared wars (six if you separate out our declaration of war against Romania in 1942 from the declaration in 1941 against the Axis powers with which Romania was allied), and only one of them was an actual declaration to go to war – the other four were in response to our having been attacked.  Until recently, all of these military engagements were viewed as “war”; now, however, they have been also referred to as “police action” or simply “conflict.”  However, to those who fought, bled and died in them, they were wars.  Two such wars that were called such were the Korean and Vietnam Wars.

In the aftermath of our disastrous war in Vietnam (which was an undeclared war), Congress passed the War Powers Resolution of 1973 in an effort to restrict the President’s ability to commit US forces into battle without first getting congressional approval.  It is an unnecessary, useless and dangerous act and cuts across the grain of the intent of the Constitution to vest war-making powers in the hands of the legislature.

The resolution gives “statutory authorization” for the President to commit US forces into a military engagement or if there is “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”  It requires him to notify Congress within 48 hours of his action and that those forces he has committed may only remain in the battlefield for 60 days (plus an additional 30 days for withdrawal) without securing additional congressional approval or formal declaration of war.

This resolution is foolish and dangerous on two grounds.  First, it cuts against the intent of the Constitution by allowing this broad, nebulous “statutory authorization” to in fact decide to go to war.  To declare war means there must be an enemy against whom this declaration is made – there cannot, constitutionally, be this vague, blanket “statutory authorization” for the President to use our military when and how he sees fit!  Second, once the President decides, without a formal congressional declaration of war, to let our military loose in some part of the world, his action could turn into a full-blown conflagration, and then Congress would have to declare a formal state of war, even if it didn’t want to.  In effect, this strips away the separation of powers our founders intended in this gravest of acts.

Furthermore, it is unnecessary in that the President fulfills the role of the Commander-in-Chief, meaning he calls the shots with the military when we are at war.  He cannot, constitutionally, unless we are attacked and immediate response is required for our defense, go off on his own and launch us into a military conflict (which, remember, for those fighting it is a war).  Since he is already limited by the Constitution in Article I, Section 8, Clause 11, there is no need for this resolution.

Those who are elected to the office of the Presidency need to be reminded of their limitations and Congress needs to step up and take back their authority as our founders intended.  If this was to occur, then perhaps much bloodshed and needless suffering and expense could be prevented.

-June 2, 2017

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